Ivory Bill EXPLANATORY NOTES

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1 Ivory Bill EXPLANATORY NOTES Explanatory notes to the Bill, prepared by the Department for Environment, Food and Rural Affairs, are published separately as Bill 21 EN. EUROPEAN CONVENTION ON HUMAN RIGHTS Michael Gove has made the following statement under section 19(1)(a) of the Human Rights Act 1998: In my view the provisions of the Ivory Bill are compatible with the Convention rights. Bill 21 7/1

2 Ivory Bill CONTENTS Prohibition 1 Prohibition on dealing in ivory Exemption for outstandingly valuable and important pre-1918 items 2 Pre-1918 items of outstanding artistic etc value and importance 3 Applications for exemption certificates 4 Further provision about exemption certificates Fresh applications and appeals Other exemptions 6 Pre-1918 portrait miniatures 7 Pre-1947 items with low ivory content 8 Pre-197 musical instruments 9 Acquisitions by qualifying museums Registration 11 Further provision about registration Criminal and civil sanctions 12 Offence of breaching the prohibition or causing or facilitating a breach 13 Civil sanctions Powers of entry, search and seizure 14 Power to stop and search persons 1 Power to stop and search vehicles 16 Power to board and search vessels and aircraft 17 Powers to enter and search premises 18 Warrants authorising entry and search of premises 19 Further provision about search warrants Powers of examination etc 21 Power to require production of documents etc 22 Powers of seizure etc 23 Excluded items 24 Further provision about seizure under section 22 2 Notices and records in relation to seized items 26 Powers of entry, search and seizure: supplementary provision 27 Offences of obstruction etc Bill 21 7/1

3 ii Ivory Bill Retention and disposal or return of items 28 Retention of seized items 29 Forfeiture of seized items by court on application Appeal against decision under section Return of item to person entitled to it, or disposal if return impracticable 32 Forfeiture by court following conviction General 33 Application of Customs and Excise Management Act Liability of corporate officers for offences by bodies corporate etc 3 Meaning of ivory 36 Meaning of other expressions 37 Regulations and guidance 38 Financial provision 39 Crown application Extent 41 Commencement 42 Short title Schedule 1 Civil sanctions Part 1 Monetary penalties Part 2 Stop notices Part 3 Enforcement undertakings Part 4 Enforcement cost recovery notices Part Power to make supplementary provision etc by regulations Part 6 General and supplemental Part 7 Interpretation Schedule 2 Search warrants: England and Wales and Northern Ireland Part 1 Preliminary Part 2 Search warrants: applications and safeguards Part 3 Execution of search warrants

4 Ivory Bill 1 A BILL Prohibit dealing in ivory, and for connected purposes. TO B E IT ENACTED by the Queen s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Prohibition 1 Prohibition on dealing in ivory (1) Dealing in ivory is prohibited. (2) Dealing in ivory means (a) buying, selling or hiring it; (b) offering or arranging to buy, sell or hire it; (c) keeping it for sale or hire; (d) exporting it from the United Kingdom for sale or hire; (e) importing it into the United Kingdom for sale or hire. (3) For the purposes of this section (a) buying includes acquiring for valuable consideration; (b) selling includes disposing of for valuable consideration; (c) offering includes advertising and inviting to treat. (4) In subsection (2) (a) a reference in paragraph (b) to buying or hiring ivory does not include buying ivory, or hiring it as the borrower, outside the United Kingdom; (b) a reference in paragraph (b) or (c) to selling or hiring ivory includes selling ivory, or hiring it as the lender, outside the United Kingdom. () In this section ivory includes (a) an item made of ivory; (b) an item that has ivory in it. (See further section 3.) (6) Sections 2 and 6 to 9 set out exceptions to the prohibition. 1 Bill 21 7/1

5 2 Ivory Bill Exemption for outstandingly valuable and important pre-1918 items 2 Pre-1918 items of outstanding artistic etc value and importance (1) An item that is made of ivory, or has ivory in it, is exempt from the prohibition if (a) the Secretary of State has issued a certificate under this section (an exemption certificate ), and (b) the certificate has not been revoked under section 4(3). This is subject to section 4(7). (2) The Secretary of State may issue an exemption certificate for an item only if satisfied that (a) the item is pre-1918, and (b) the item is of outstandingly high artistic, cultural or historical value. (3) The following matters are to be taken into account in considering whether the condition in paragraph (b) of subsection (2) is satisfied in the case of a particular item (a) the rarity of the item; (b) the extent to which the item is an important example of its type; (c) any other matters specified in guidance issued by the Secretary of State. (4) An exemption certificate for an item may be issued only on the application of the owner of the item. () The Secretary of State may by regulations prescribe institutions that, in his or her opinion, possess the necessary knowledge and expertise to provide the Secretary of State with advice on applications for exemption certificates. In this Act prescribed institution means an institution prescribed under this subsection. (6) An institution may be prescribed under subsection () only with the consent of the persons in charge of the institution. 3 Applications for exemption certificates (1) A person applying for an exemption certificate for an item must (a) give the name and address of the owner of the item, (b) provide a description of the item and of any distinguishing features that it has, (c) provide a photograph of the item showing any such features, (d) make a declaration that, in the applicant s opinion, the item satisfies the conditions in paragraphs (a) and (b) of section 2(2), (e) provide an explanation as to why the applicant is of that opinion, (f) provide information about any dealing in the item that is expected to take place, (g) provide any other information specified in guidance issued by the Secretary of State, and (h) pay to the Secretary of State any fee prescribed by regulations made by the Secretary of State. (2) The Secretary of State must refer an application for an exemption certificate to a prescribed institution if satisfied that 1 2 3

6 Ivory Bill 3 (a) the applicant has complied with subsection (1), and (b) the item is not one that clearly fails to satisfy the conditions in paragraphs (a) and (b) of section 2(2). Otherwise the Secretary of State must refuse the application and inform the applicant why it has been refused. (3) Where an application is referred to a prescribed institution under subsection (2), an individual nominated by the institution ( the assessor ) must (a) inspect and assess the item, (b) notify the Secretary of State whether or not, in the assessor s opinion, the item satisfies the conditions in paragraphs (a) and (b) of section 2(2), and (c) notify the Secretary of State of the assessor s reasons for forming that opinion. (4) An institution may nominate an individual under subsection (3) only with the individual s consent. () The Secretary of State must reimburse the reasonable costs of the prescribed institution or the assessor in dealing with an application referred under subsection (2). (6) Having considered the assessor s opinion, the Secretary of State (a) must grant the application for an exemption certificate if the Secretary of State is of the opinion that the item satisfies the conditions in paragraphs (a) and (b) of section 2(2); (b) otherwise, must refuse the application and inform the applicant why it has been refused. (7) If the application is granted, the Secretary of State must provide the applicant with an exemption certificate. 4 Further provision about exemption certificates (1) An exemption certificate must (a) contain a unique number (or combination of letters and figures); (b) contain enough information to identify (so far as possible) the item to which it relates. (2) Where an exemption certificate has been issued for an item and (a) the owner of the item becomes aware that any relevant information relating to the item is inaccurate or incomplete, or (b) any such information becomes inaccurate or incomplete, the owner must notify the Secretary of State accordingly and must provide the Secretary of State with the necessary information to make good the inaccuracy or incompleteness. (3) The Secretary of State may revoke an exemption certificate if it appears to the Secretary of State that (a) the item concerned does not satisfy the conditions in paragraphs (a) and (b) of section 2(2), or (b) the owner of the item has failed to comply with subsection (2) above. (4) The Secretary of State may issue a revised exemption certificate if it appears to the Secretary of State that any relevant information relating to the item concerned is, or has become, inaccurate or incomplete

7 4 Ivory Bill () The Secretary of State may provide a person with a new exemption certificate (a replacement certificate ) if (a) an exemption certificate has been lost, (b) a person acquires an item in respect of which an exemption certificate has been issued but is unable to obtain that certificate from the previous owner, or (c) it seems to the Secretary of State to be appropriate for any other reason to provide a replacement certificate. (6) Section 3 does not apply to an application for a replacement certificate. (7) Where a person (P) deals in an item in respect of which an exemption certificate was issued to a different person, the exemption under section 2 applies only if (a) P has taken possession of the certificate or has been provided with a replacement certificate in respect of the item, and (b) P has provided the Secretary of State with any specified information and has paid to the Secretary of State any fee prescribed by regulations made by the Secretary of State. (8) The Secretary of State may require or allow anything that a person is required to do under section 3 or this section to be done in a form or manner specified in guidance issued by the Secretary of State. (9) In this section information includes any declaration or photograph; relevant information means any information given to the Secretary of State under section 3 or this section; specified information means information specified in guidance issued by the Secretary of State. Fresh applications and appeals (1) Where an application for an exemption certificate is refused or an exemption certificate is revoked, the owner of the item concerned (a) may make a fresh application; (b) may appeal against the refusal or revocation. (2) A fee prescribed under section 3(1)(h) must be the same for a fresh application under subsection (1)(a) as for a first application. (3) The Secretary of State may by regulations make provision about appeals under subsection (1)(b). (4) The provision that may be made under subsection (3) includes (in particular) (a) provision about time periods within which appeals are to be brought and determined; (b) provision about the persons by whom appeals are to be determined; (c) provision about written representations; (d) provision as to the orders that may be made on an appeal; (e) provision requiring an appellant to pay a fee of a prescribed amount

8 Ivory Bill Other exemptions 6 Pre-1918 portrait miniatures An item that has ivory in it is exempt from the prohibition if (a) the item is a pre-1918 portrait miniature, and (b) it is registered under section. 7 Pre-1947 items with low ivory content (1) An item that has ivory in it is exempt from the prohibition if (a) the item is pre-1947, (b) all the ivory in the item is integral to it, (c) the volume of ivory in the item is less than % of the total volume of the material of which the item is made, and (d) the item is registered under section. (2) For the purposes of subsection (1)(b) ivory is integral to an item if it could not be removed from the item without difficulty or without damaging the item. 8 Pre-197 musical instruments (1) An item that has ivory in it is exempt from the prohibition if (a) the item is a pre-197 musical instrument, (b) the volume of ivory in the instrument is less than % of the total volume of the material of which the instrument is made, and (c) the instrument is registered under section. (2) In this section musical instrument (a) does not include anything that, although capable of being played as a musical instrument, was not made primarily for that purpose; (b) includes a bow, plectrum or other thing made for playing a musical instrument Acquisitions by qualifying museums (1) Dealing in an ivory item to which this section applies is exempt from the prohibition if or to the extent that the dealing (a) is a sale to, or a purchase or hire by, a qualifying museum, or (b) is done for the purpose of such a sale, purchase or hire. (2) This section applies to an ivory item that (a) was owned by a qualifying museum immediately before the relevant time, or (b) is registered under section. (3) A museum is a qualifying museum if at the relevant time (a) in the case of a museum in the United Kingdom, the Channel Islands or the Isle of Man, it is shown as being accredited in a list published by or on behalf of (i) Arts Council England, (ii) the Welsh Government, (iii) Museums Galleries Scotland, or 3

9 6 Ivory Bill (b) (iv) Northern Ireland Museums Council; in the case of a museum anywhere else, it is a member of the International Council of Museums. (4) Regulations made by the Secretary of State may make any amendment to paragraph (a) or (b) of subsection (3) that is consequential on a change of name or transfer of functions involving a body specified in that paragraph. () In this section ivory item means (a) an item made of ivory, or (b) an item that has ivory in it, but does not include an item consisting only of unworked ivory; purchase includes an acquisition for valuable consideration; the relevant time means the time of any activity that constitutes dealing in the ivory; sale includes a disposal for valuable consideration (and sell is to be read accordingly). 1 Registration (1) The Secretary of State must register an item under this section if the owner of the item (a) applies for it to be registered, giving the owner s name and address, (b) provides a description of the item and of any distinguishing features that it has, (c) provides a photograph of the item showing any such features, (d) in the case of an exemption under section 6, 7, or 8 (i) makes a declaration that the item satisfies the relevant exemption conditions, and (ii) provides an explanation of how the item satisfies those conditions, (e) provides information about any dealing in the item that is expected to take place, (f) provides any other information specified in guidance issued by the Secretary of State, and (g) pays to the Secretary of State any fee prescribed by regulations made by the Secretary of State. (2) The relevant exemption conditions are (a) in the case of section 6, the condition in paragraph (a) of that section; (b) in the case of section 7, the conditions in subsection (1)(a) to (c) of that section; (c) in the case of section 8, the conditions in subsection (1)(a) and (b) of that section. (3) Regulations under subsection (1)(g) may provide for exemptions. (4) Where an item is registered in response to an application under this section, the Secretary of State must provide the applicant with written confirmation of the registration. The confirmation must (a) identify the owner of the item; 2 3 4

10 Ivory Bill 7 (b) (c) contain a unique number (or combination of letters and figures); contain enough information to identify (so far as possible) the item to which it relates. () The Secretary of State must keep a record of information (including photographs) provided to the Secretary of State under this section or section Further provision about registration (1) The registration of an item under section ceases to be valid if the ownership of the item changes (but the new owner may make a fresh application for registration). (2) Where an item is registered under section and (a) the owner of the item becomes aware that any relevant information relating to the item is inaccurate or incomplete, or (b) any such information becomes inaccurate or incomplete, the owner must notify the Secretary of State accordingly and must provide the Secretary of State with the necessary information to make good the inaccuracy or incompleteness. (3) The Secretary of State may cancel a registration under section if it appears to the Secretary of State that (a) the item concerned does not satisfy the relevant exemption conditions, (b) the registration has become invalid because of subsection (1), or (c) the owner of the item has failed to comply with subsection (2). (4) The Secretary of State may amend a registration under section, or anything recorded under section (), if it appears to the Secretary of State that any relevant information relating to the registered item is, or has become, inaccurate or incomplete. () The Secretary of State may require or allow anything that a person is required to do under section or this section to be done in a form or manner specified in guidance issued by the Secretary of State. (6) In this section information includes any declaration or photograph; relevant information means any information given to the Secretary of State under section or this section; the relevant exemption conditions has the meaning given by section (2). Criminal and civil sanctions 12 Offence of breaching the prohibition or causing or facilitating a breach (1) It is an offence (a) to breach the prohibition, (b) to cause the prohibition to be breached, or (c) to facilitate a breach of the prohibition

11 8 Ivory Bill (2) A person commits an offence under this section in relation to an item only if the person knows or suspects, or ought to know or suspect, that the item is ivory, is made of ivory or (as the case may be) has ivory in it. (3) It is a defence for a person charged with an offence under this section to prove that the person took all reasonable precautions and exercised all due diligence to avoid committing the offence. (4) A person who commits an offence under this section is liable (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding 12 months or a fine (or both); (b) on summary conviction in Scotland, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum (or both); (c) on summary conviction in Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum (or both); (d) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine (or both). () In relation to an offence committed before section 14(1) of the Criminal Justice Act 03 comes into force, the reference in subsection (4)(a) to 12 months is to be read as a reference to six months Civil sanctions Schedule 1 (civil sanctions) has effect. Powers of entry, search and seizure 14 Power to stop and search persons (1) This section applies where a police or customs officer has reasonable grounds to suspect that a person has committed, or is committing, a relevant offence. (2) The officer may (a) search the person for relevant evidence; (b) stop and detain the person for the purposes of the search. (3) The powers conferred by this section may be exercised in any place to which the officer lawfully has access (whether or not it is a place to which the public has access). (4) In this Act police or customs officer means (a) a constable, (b) a designated customs official, or (c) a designated NCA officer authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a police or customs officer under this Act; relevant evidence means evidence that a relevant offence has been committed; relevant offence means 2 3

12 Ivory Bill 9 (a) an offence in connection with an exemption certificate or with registration under section, or (b) an offence under section Power to stop and search vehicles (1) This section applies where (a) a police or customs officer has reasonable grounds to suspect that there is relevant evidence in a vehicle, and (b) the vehicle is not a dwelling. (2) The officer may at any time (a) enter the vehicle and search it for relevant evidence; (b) stop and detain the vehicle for the purposes of entering and searching it. (3) Where (a) a police or customs officer has stopped a vehicle under this section, and (b) the officer considers that it would be impracticable to search the vehicle in the place where it has stopped, the officer may require the vehicle to be taken to another place to enable the vehicle to be searched. (4) A police or customs officer may require (a) any person travelling in a vehicle, or (b) the registered keeper of a vehicle, to provide any help and facilities, with respect to matters under the person s control, that the officer considers would facilitate the exercise of a power conferred by this section. () The powers conferred by this section may be exercised in any place to which the officer lawfully has access (whether or not it is a place to which the public has access). (6) In this section vehicle does not include any vessel or aircraft (as to which, see section 16). (7) For provisions conferring additional powers to enter and search vehicles, see sections 17 and Power to board and search vessels and aircraft (1) This section applies where (a) a police or customs officer has reasonable grounds to suspect that there is relevant evidence in or on any vessel or aircraft, and (b) the vessel or aircraft is not a dwelling. (2) The officer may at any time (a) board the vessel or aircraft; (b) search it for relevant evidence. (3) For the purposes of exercising the power conferred by subsection (2), the officer may require a vessel or aircraft (a) to stop, or 3

13 Ivory Bill (b) to do anything else that would facilitate the boarding of that or any other vessel or aircraft. (4) A police or customs officer who has boarded a vessel or aircraft may, for the purposes of disembarking from the vessel or aircraft, require that or any other vessel or aircraft (a) to stop, or (b) to do anything else that would enable the officer to disembark from the vessel or aircraft. () A police or customs officer may require any person on board a vessel or aircraft to provide any help and facilities, with respect to matters under that person s control, that the officer considers would facilitate the exercise of a power conferred by this section. (6) The powers conferred by this section may be exercised in any place to which the officer lawfully has access (whether or not it is a place to which the public has access). (7) For provision conferring additional powers to enter and search vessels and aircraft, see sections 17 and Powers to enter and search premises (1) Subsection (2) applies to premises that an accredited civilian officer reasonably thinks may be used in connection with dealing in ivory. In this subsection ivory includes (a) an item made of ivory; (b) an item with ivory in it. (2) An accredited civilian officer may enter premises to which this subsection applies, on giving reasonable notice, for the purpose of (a) promoting awareness and understanding of the provisions of this Act, or (b) assessing compliance with those provisions. (3) An accredited civilian officer may search premises for relevant evidence if (a) the officer s presence there is authorised by subsection (2) or is otherwise lawful, and (b) the officer has reasonable grounds to suspect that there is relevant evidence on the premises. (4) An accredited civilian officer who has reasonable grounds to suspect that there is relevant evidence on premises may, on giving reasonable notice (a) enter the premises, and (b) search them for relevant evidence. () Notice under subsection (2) or (4) must (a) be in writing, (b) set out the purpose of the proposed entry, and (c) explain the effect of section 27 (offences of obstruction). (6) This section (a) does not authorise the entry into premises used wholly or mainly as a dwelling; 1 2 3

14 Ivory Bill 11 (b) authorises entry only at a reasonable time. (7) In this Act accredited civilian officer means an officer of the Secretary of State who is authorised by the Secretary of State for the purposes of this Act; premises includes any place and, in particular, includes (a) a vehicle, vessel or aircraft; (b) a tent or moveable structure. 18 Warrants authorising entry and search of premises (1) Where a justice is satisfied that the requirements in subsection () are met in relation to any premises, the justice may issue a warrant (a search warrant ) authorising a police or customs officer or an accredited civilian officer (a) to enter the premises; (b) to search them for relevant evidence. (2) A search warrant may be issued only on the application of (a) a police or customs officer or an accredited civilian officer, in England and Wales or Northern Ireland; (b) a police or customs officer, an accredited civilian officer or a procurator fiscal, in Scotland. (3) A police or customs officer or an accredited civilian officer may apply for a search warrant only if the officer is a senior officer or is authorised by a senior officer to make the application. In this subsection senior officer means (a) a constable of at least the rank of inspector; (b) a designated customs official of at least the grade of senior officer; (c) a designated NCA officer of grade 3 or above; (d) an accredited civilian officer of grade 7 or above. (4) A search warrant may be either (a) a warrant that relates only to premises specified in the warrant (a specific-premises warrant ), or (b) in the case of a warrant issued in England and Wales or Northern Ireland, a warrant that relates to any premises occupied or controlled by a person specified in the warrant (an all-premises warrant ). () The requirements of this subsection are met in relation to premises if there are reasonable grounds to suspect that (a) there are items on the premises that are relevant evidence, and (b) in a case where the premises are specified in the application, any of the conditions in subsection (6) is met. (6) The conditions referred to in subsection ()(b) are (a) that it is not practicable to communicate with any person entitled to grant entry to the premises; (b) that it is not practicable to communicate with any person entitled to grant access to the items; (c) that entry to the premises is unlikely to be granted unless a warrant is produced; 1 2 3

15 12 Ivory Bill (d) that the purpose of entry may be frustrated or seriously prejudiced unless a police or customs officer or accredited civilian officer arriving at the premises can secure immediate entry to them. 19 Further provision about search warrants (1) An application for a search warrant must be supported (a) in England and Wales, by an information in writing; (b) in Scotland, by evidence on oath; (c) in Northern Ireland, by a complaint on oath. (2) A person applying for a search warrant must answer on oath any question that the justice hearing the application asks the person. In the case of an application made by a procurator fiscal, that requirement may be met by a police or customs officer or an accredited civilian officer. (3) A search warrant may be executed by any police or customs officer or accredited civilian officer. (4) A search warrant may authorise persons to accompany any police or customs officer or accredited civilian officer who is executing it if the justice issuing the warrant is satisfied that their presence is likely to be helpful to the search. () A person authorised under subsection (4) to accompany a police or customs officer or an accredited civilian officer may exercise any power conferred by sections 18 to 24 that the officer may exercise as a result of the warrant. But the person may exercise such a power only in the company of, and under the supervision of, a police or customs officer or accredited civilian officer. (6) Unless giving notice would be likely to frustrate or seriously prejudice the purpose of a search (a) reasonable efforts must be made to give notice of an application for a search warrant to persons who might be affected by it; (b) a search warrant does not authorise entry to premises unless 48 hours notice of the intended entry is given to the occupier or some other appropriate person who is responsible for the premises. (7) Schedule 2 contains further provision about (a) applications for search warrants made in England and Wales or Northern Ireland; (b) search warrants issued in England and Wales or Northern Ireland. (8) An entry on or search of premises under a search warrant issued in England and Wales or Northern Ireland is unlawful if it does not comply with the provisions of Part 3 of that Schedule (execution of search warrants). Powers of examination etc (1) This section applies where an officer is exercising a power of search conferred by section 1, 16, 17 or 18 in relation to any premises. (2) The officer may examine anything on the premises that the officer thinks is or may be relevant evidence. (3) The officer may carry out any measurement or test of anything that the officer has power under this section to examine

16 Ivory Bill 13 (4) The power conferred by subsection (3) includes power to take a sample from an item in a way that causes no damage to the item or the least damage possible. () The officer may break open any container or other locked thing if satisfied that it is necessary to do so for the purpose of (a) determining whether a relevant offence has been committed, or (b) investigating a relevant offence. (6) The officer may require any person on the premises to provide any help or facilities, with respect to matters under the person s control, that the officer considers would facilitate the exercise of (a) a power of search conferred on the officer by section 1, 16, 17 or 18, or (b) a power conferred on the officer by this section. (7) Nothing in this section confers any power to search a person. 21 Power to require production of documents etc (1) This section applies where an officer is exercising a power of search conferred by section 1, 16, 17 or 18 in relation to any premises. (2) The officer may require any person on the premises to produce any document or record in the person s possession or control that the officer thinks is or is likely to be relevant to (a) the question whether a relevant offence has been committed, or (b) the investigation of a relevant offence. (3) A reference in this section to the production of a document includes a reference to the production of (a) a hard copy of information recorded otherwise than in hard copy form, or (b) information in a form from which a hard copy can be readily obtained. (4) For the purposes of this section (a) information is recorded in hard copy form if it is recorded in a paper copy or similar form capable of being read (and references to hard copy have a corresponding meaning); (b) information can be read only if (i) it can be read with the naked eye, or (ii) to the extent that it consists of images (for example photographs, pictures, maps, plans or drawings), it can be seen with the naked eye. 22 Powers of seizure etc (1) A police or customs officer who is exercising the power of search conferred by section 14 may seize and detain anything found in the course of the search. (2) An officer who is exercising a power of search conferred by section 1, 16, 17 or 18 in relation to any premises may (a) seize and detain or remove any item found on the premises; (b) take copies of or extracts from any document or record found on the premises

17 14 Ivory Bill (3) An officer to whom a document or record has been produced in response to a requirement imposed under section 21 may (a) seize and detain or remove that document or record; (b) take copies of or extracts from that document or record. In this subsection document includes anything falling within paragraph (a) or (b) of section 21(3). (4) The powers under this section may be exercised only (a) for the purposes of determining whether a relevant offence has been committed, or (b) in relation to an item that the officer concerned reasonably believes to be relevant evidence. () Nothing in this section confers power on an officer to seize an item that is an excluded item (see section 23). 23 Excluded items (1) This section sets out what is meant by excluded items for the purposes of section 22. (2) In England and Wales excluded items means (a) items subject to legal privilege, within the meaning of the Police and Criminal Evidence Act 1984 (see section of that Act); (b) excluded material within the meaning of that Act (see section 11 of that Act); (c) special procedure material within the meaning of that Act (see section 14 of that Act). (3) In Scotland excluded items means items in respect of which a claim to confidentiality of communications could be maintained in legal proceedings. (4) In Northern Ireland excluded items means (a) items subject to legal privilege within the meaning of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/ 1341 (N.I. 12)) (see Article 12 of that Order); (b) excluded material within the meaning of that Order (see Article 13 of that Order); (c) special procedure material within the meaning of that Order (see Article 16 of that Order). 24 Further provision about seizure under section 22 (1) Where (a) any items that an officer wishes to seize and remove are in a container, and (b) the officer reasonably considers that it would facilitate the seizure and removal of the items if they remained in the container for that purpose, any power to seize and remove the items conferred on the officer by section 22 includes power to seize and remove the container. (2) If a container is seized under this section, reasonable efforts must be made to return it to (a) the person from whom it was seized, or 1 2 3

18 Ivory Bill 1 (b) (if different) a person to whom it belongs. (3) Subsection (2) does not apply (a) if the container appears to be of negligible value, (b) if it is not practicable for the container to be returned, or (c) while the container is or may be needed for use as evidence at a trial for an offence. (4) If, in the opinion of the officer concerned, it is not for the time being practicable for the officer to seize and remove any item, the officer may require (a) the person from whom the item is to be seized, or (b) where the officer is exercising a power of search conferred by sections 1 to 18 in relation to any premises, any person on the premises, to secure that the item is not removed or otherwise interfered with until the officer is able to seize and remove it. 2 Notices and records in relation to seized items (1) This section applies where an officer, or a person accompanying an officer, seizes an item under section 22. (2) When the item is seized, the officer must make reasonable efforts to give a written notice to each of the following persons (a) in the case of an item seized from a person, the person from whom the item was seized; (b) in the case of an item seized from premises, any person who appears to the officer to be the occupier of the premises or otherwise to be in charge of the premises; (c) if the officer thinks that the item may belong to any person not falling within paragraph (a) or (b), that other person. A person falling within any of paragraphs (a) to (c) is referred to in this section as an affected person. (3) If (a) the item is seized from premises, and (b) at the time of the seizure it is not reasonably practicable to give a notice to an affected person, the officer must leave a copy of the notice in a prominent place on the premises. (4) The notice must (a) state what has been seized and the reason for its seizure; (b) specify any offence that the officer suspects has been committed; (c) explain the effect of sections 28, 29 and 31. () The officer must make a record of what has been seized. (6) If a person who appears to the officer concerned to be an affected person asks for a copy of that record, the officer must provide a copy of it to that person within a reasonable time Powers of entry, search and seizure: supplementary provision (1) An officer who is exercising, or is about to exercise, a power conferred by section 14, 1, 16 or 17 must

19 16 Ivory Bill (a) give his or her name, and (b) if not a constable in uniform, produce documentary evidence that he or she is authorised to exercise the power, if asked to do so by a person entitled to make the request. (2) The persons entitled to make the request are (a) in the case of a power exercisable in relation to an individual, that individual; (b) in the case of a power exercisable in relation to a vehicle, vessel or aircraft, a person in charge of that vehicle, vessel or aircraft; (c) in the case of a power exercisable in relation to premises, an occupier of those premises who is on the premises. (3) An officer need not comply with subsection (1) if it is not reasonably practicable to do so. (4) An officer may use reasonable force, if necessary, for the purpose of exercising a power conferred on the officer by sections 14 to 24. () A person authorised under section 19(4) to accompany an officer may use reasonable force, if necessary, for the purpose of exercising a power conferred by sections 18 to 24. (6) The powers conferred on an officer by any of sections 14 to 24 do not affect any powers exercisable by the officer apart from those sections Offences of obstruction etc (1) A person commits an offence if, without reasonable excuse, the person intentionally obstructs an officer in the performance of any of the officer s functions under sections 14 to 24. (2) A person commits an offence if (a) the person fails without reasonable excuse to comply with a requirement reasonably made, or a direction reasonably given, by an officer in the exercise of a power conferred by sections 1 to 24, or (b) the person prevents another person from complying with any such requirement or direction. (3) A reference in this section to an officer includes a reference to a person authorised under section 19(4) to accompany a police or customs officer or accredited civilian officer. (4) A person who commits an offence under this section is liable (a) on summary conviction in England and Wales, to imprisonment for a term not exceeding six months or a fine (or both); (b) on summary conviction in Scotland or Northern Ireland, to imprisonment for a term not exceeding six months or a fine not exceeding level on the standard scale (or both). 2 3

20 Ivory Bill 17 Retention and disposal or return of items 28 Retention of seized items (1) An item seized under section 22 may be retained for as long as is necessary in all the circumstances and in particular (a) for use as evidence at a trial for a relevant offence, or (b) for forensic examination or for investigation in connection with a relevant offence. (2) An item may be not be retained for either of the purposes mentioned in subsection (1) if a photograph or a copy would be sufficient for that purpose. 29 Forfeiture of seized items by court on application (1) A police officer or an accredited civilian officer may apply to the appropriate court for the forfeiture of an item retained under section 28. (2) The item is to be retained while proceedings on such an application are in progress. (3) Where an application under this section is made in relation to an item, the court may order the item to be forfeited if satisfied (a) that a relevant offence has been committed in respect of it, or (b) that it was used in the commission of a relevant offence. (4) If the court does not order the item to be forfeited, it must order the item to be returned to a person entitled to it. (For provision enabling an application to be made for an order for the return of the item, see section 31(1)(b).) () Where an item is ordered to be forfeited under subsection (3), it may be disposed of in whatever way is thought appropriate by (a) the officer who made the application, (b) another police officer or accredited civilian officer acting on behalf of the same person as that officer, or (c) the Secretary of State. (6) But the item may not be disposed of under subsection () (a) before the end of the period within which an appeal under section may be made against the order, or (b) if such an appeal is made, before it is determined or otherwise dealt with. (7) Where an order for the return of an item is made under subsection (4), the item may nevertheless be retained (a) until the end of the period within which an appeal under section may be made against the order, or (b) if such an appeal is made, until the time when it is determined or otherwise dealt with. But if it is decided before the end of the period mentioned in paragraph (a) that there is to be no appeal, the item must be returned as soon as possible after that decision is made. (8) In this Act 1 2 3

21 18 Ivory Bill the appropriate court means (a) in relation to England and Wales, a magistrates court; (b) in relation to Scotland, the sheriff; (c) in relation to Northern Ireland, a court of summary jurisdiction; police officer means (a) a constable; (b) a designated NCA officer authorised by the Director General of the National Crime Agency (whether generally or specifically) to exercise the powers of a constable under this Act. (9) The persons entitled to an item for the purposes of this section are (a) the person from whom it was seized; (b) (if different) any person to whom it belongs. Appeal against decision under section 29 (1) Where an order has been made under section 29, each of the following persons may appeal against the order (a) a party to the proceedings in which the order was made; (b) any other person entitled to the item to which the order relates. (2) Where (a) a police officer or an accredited civilian officer brings an appeal under this section, and (b) no person entitled to the item in question was a party to the original proceedings, the officer must make reasonable efforts to give notice of the appeal to every person who the officer thinks is or may be entitled to the item. (3) An appeal under this section is to (a) the Crown Court, in England and Wales; (b) the Sheriff Appeal Court, in Scotland; (c) a county court, in Northern Ireland. (4) An appeal under this section against an order must be made before the end of the period of 28 days starting with the date of the order. () Subject to subsections (6) and (7), the court hearing the appeal may make any order the court thinks appropriate. (6) If an appeal against an order for the return of an item is allowed (a) the court must order the item to be forfeited, and (b) subsections () and (6) of section 29 apply with the necessary adaptations. (7) If an appeal against an order forfeiting an item is allowed (a) the court must order the item to be returned to a person entitled to it, and (b) subsection (7) of section 29 applies with the necessary adaptations. (8) The persons entitled to an item for the purposes of this section are (a) the person from whom it was seized; (b) (if different) any person to whom it belongs

22 Ivory Bill Return of item to person entitled to it, or disposal if return impracticable (1) Where the retention of an item has been, but is no longer, authorised under this Act (a) the item must (subject to section 29(3) and subsection (3) below) be returned to a person entitled to it; (b) a person who claims to be entitled to the item may apply to the appropriate court for an order that the item be returned to that person. (2) Where (a) a court makes an order under this Act requiring an item to be returned to a particular person, and (b) reasonable efforts have been made, without success, to find that person, or it is for some other reason impracticable to return the item to that person, the order has effect as if it required the item to be returned to any person entitled to it. (3) Where (a) an item is required by a provision of this Act, or an order made under this Act, to be returned to a person entitled to it, and (b) reasonable efforts have been made, without success, to find a person entitled to the item, or it is for some other reason impracticable to return the item to a person entitled to it, a police or customs officer, or the Secretary of State, may dispose of the item in whatever way the officer or the Secretary of State thinks appropriate. (4) The persons entitled to an item for the purposes of this section are (a) the person from whom it was seized; (b) (if different) any person to whom it belongs. 32 Forfeiture by court following conviction (1) This section applies where a person is convicted of (a) a relevant offence, (b) an offence of attempting or conspiring to commit a relevant offence, (c) an offence under Part 2 of the Serious Crime Act 07 (encouraging or assisting crime) in relation to a relevant offence, (d) an offence of inciting a person to commit a relevant offence, or (e) an offence of aiding, abetting, counselling or procuring the commission of a relevant offence. (2) In this section the court means (a) the court by or before which the person is convicted of the offence, except where paragraph (b) or (c) applies; (b) if the person is committed to the Crown Court to be dealt with for the offence, the Crown Court; (c) if the person is remitted to the High Court of Justiciary to be dealt with for the offence, the High Court of Justiciary. (3) The court may make an order for the forfeiture of (a) any ivory, or any item that is made of ivory or has ivory in it, in respect of which the offence was committed; (b) any other item that was used in the commission of the offence

23 Ivory Bill An order under this subsection is referred to below as a forfeiture order. (4) Before making a forfeiture order under subsection (3)(b) in relation to any item, the court must give an opportunity to make representations to any person (in addition to the convicted person) who claims to be the owner of the item or otherwise to have an interest in it. () A forfeiture order may not be made so as to come into force before the time when there is no further possibility (ignoring any power to appeal out of time) of the order being varied or set aside on appeal. (6) Where the court makes a forfeiture order, it may also make any other provision that it considers to be necessary for giving effect to the forfeiture. (7) That provision may, in particular, include provision relating to the retention, handling, destruction or other disposal of the item. (8) Provision made by virtue of this section may be varied at any time by the court that made it. General 33 Application of Customs and Excise Management Act 1979 (1) An item that is (a) imported or exported in breach of the prohibition, or (b) declared for, or brought to a place in the United Kingdom for, exportation in breach of the prohibition, is liable to forfeiture under the Customs and Excise Management Act (2) Section of that Act (time of importation, exportation, etc) applies for the purposes of this section as it applies for the purposes of that Act Liability of corporate officers for offences by bodies corporate etc (1) If an offence under this Act by a body corporate or a Scottish partnership is proved to have been committed with the consent or connivance of an officer, the officer (as well as the body corporate or partnership) is guilty of the offence and liable to be proceeded against and punished accordingly. (2) In relation to a body corporate officer means (a) a director, manager, secretary or other similar officer of the body, or (b) a person purporting to act in any such capacity. (3) In relation to a Scottish partnership officer means (a) a partner, or (b) a person purporting to act as a partner. (4) If the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts and omissions of a member in connection with functions of management as if the member were an officer of the body Meaning of ivory (1) In this Act (apart from this section) ivory means ivory from the tusk or tooth of an elephant.

24 Ivory Bill 21 (2) Regulations made by the Secretary of State may amend subsection (1). (3) The regulations may amend subsection (1) so as to include ivory from an animal or species not for the time being covered by that subsection only if the animal or species is currently listed in an Appendix to the Convention on International Trade in Endangered Species of Wild Fauna and Flora. (4) A statutory instrument containing regulations under subsection (2) (whether alone or with other provision) may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House. () In any proceedings under this Act, any material that is proved to be ivory from an animal is presumed to be ivory from an elephant unless the material is proved to be not from an elephant. (6) In this section elephant means an animal of a species that is (a) within the family Elephantidae, and (b) extant on the day on which this Act is passed. 36 Meaning of other expressions (1) In this Act accredited civilian officer has the meaning given by section 17(7); the appropriate court has the meaning given by section 29(8); dealing has the meaning given by section 1(2) to (4); designated customs official means a person (a) designated as a general customs official under section 3(1) of the Borders, Citizenship and Immigration Act 09, or (b) designated as a customs revenue official under section 11(1) of that Act; designated NCA officer means a National Crime Agency officer designated under section of the Crime and Courts Act 13 as a person having either or both of the following (a) the powers and privileges of a constable; (b) the powers of an officer of Revenue and Customs; exemption certificate has the meaning given by section 2(1); justice means (a) in England and Wales, a justice of the peace; (b) in Scotland, a sheriff or summary sheriff or a justice of the peace; (c) in Northern Ireland, a lay magistrate; police officer has the meaning given by section 29(8); police or customs officer has the meaning given by section 14(4); pre-1918, pre-1947 and pre-197 are to be read in accordance with subsections (2) and (3); premises has the meaning given by section 17(7); prescribed institution has the meaning given by section 2(); the prohibition means the prohibition in section 1; relevant evidence has the meaning given by 14(4); relevant offence has the meaning given by 14(4); search warrant means a warrant under section 18; vessel is to be read in accordance with subsection (4)

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